CHAD TRIPLETT; TRACEY TRIPLETT; PHILLIP TRIPLETT; AND GWEN TRIPLETT V. LIVINGSTON COUNTY BOARD OF EDUCATION; LEE JONES; MIKE JOINER; TONY LASHER; DARRELL STAFFORD; PHILLIP THRELKELD; TIM PORTER; AND TOM COUNTS
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RENDERED:
August 15, 1997; 10:00 a.m.
TO BE PUBLISHED
NO. 96-CA-1046-MR
CHAD TRIPLETT; TRACEY TRIPLETT;
PHILLIP TRIPLETT; AND GWEN
TRIPLETT
v.
APPEAL FROM LIVINGSTON CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 94-CI-62
LIVINGSTON COUNTY BOARD OF EDUCATION;
LEE JONES; MIKE JOINER; TONY LASHER;
DARRELL STAFFORD; PHILLIP THRELKELD;
TIM PORTER; AND TOM COUNTS
AND
APPELLEES
NO. 96-CA-1371-MR
LIVINGSTON COUNTY BOARD OF EDUCATION;
LEE JONES; MIKE JOINER; TONY LASHER;
DARRELL STAFFORD; PHILLIP THRELKELD;
TIM PORTER; AND TOM COUNTS
v.
APPELLANTS
APPELLANTS
APPEAL FROM LIVINGSTON CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 94-CI-62
CHAD TRIPLETT; TRACEY TRIPLETT;
PHILLIP TRIPLETT; AND GWEN
TRIPLETT
OPINION
AFFIRMING IN PART
AND REVERSING AND REMANDING IN PART
* * *
APPELLEES
BEFORE:
COMBS, DYCHE, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from a judgment declaring
that the Kentucky Instructional Results Information System
("KIRIS") assessment exam and the requirement to take said exam
are not in violation of parents' or students' constitutional
rights, nor in violation of certain federal laws.
This is also
an appeal by the school from a ruling mandating that the KIRIS
assessment exam shall be open for public review.
We affirm the
court's decision regarding the constitutionality of the exam and
the requirement to take the exam, reverse the open records order,
and remand for proceedings consistent with this opinion.
In response to the Kentucky Supreme Court's ruling in
Rose v. Council for Better Education, Inc., Ky., 790 S.W.2d 186
(1989), the Kentucky General Assembly enacted the Kentucky
Education Reform Act ("KERA"), effective July 13, 1990, which
mandated that the Kentucky Board of Education ("KBE") develop a
system of public education whereby state government, local
committees, parents, students and school employees would share
the responsibility of improving public education in Kentucky.
Part of KERA mandates that the KBE create and implement "a
statewide, primarily performance-based assessment program to
ensure school accountability for student achievement of the goals
set forth in KRS 158.645."
KRS 158.6453.
The goals in KRS
158.645, which codified those set forth in Rose, supra at 212
are:
2
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Communication skills necessary to
function in a complex and changing
civilization;
Knowledge to make economic, social, and
political choices;
Understanding of governmental processes
as they affect the community, the state,
and the nation;
Sufficient self-knowledge and knowledge
of his mental and physical wellness;
Sufficient grounding in the arts to
enable each student to appreciate his or
her cultural and historical heritage;
Sufficient preparation to choose and
pursue his life's work intelligently;
and
Skills to enable him to compete
favorably with other students in other
states.
KRS 158.6453 required that an interim assessment test
be given to students in grades 4, 8 and 12 by the 1991-1992
school year and that the permanent assessment program be
implemented no later than the 1995-1996 school year.
In establishing the assessment program, KERA provided
for the KBE to contract with authorities in the field of
performance-based assessment.
The KBE contracted with such
authority in New Hampshire and ultimately created the Kentucky
Instructional Results Information System ("KIRIS") assessment
exam which assesses student skills in reading, mathematics,
writing, science and social studies.
The primary purpose of the KIRIS test is not for
evaluating individual student performance, but for evaluating the
progress of the school systems under KERA.
Performance levels of
Novice (being the lowest), Apprentice, Proficient and
Distinguished were established in evaluating the KIRIS exam
3
results.
Each of these performance levels was given a rating
from 0 points for the Novice, to 140 points for the
Distinguished.
Through a fairly complicated formula, the grades
of the individuals tested are computed into an overall school
rating.
The testing provides both cognitive (academic) and non-
cognitive (dropout rates, attendance, retention rates, etc.) data
which come together first to form a baseline score.
Once the
scores are established, thresholds, or goals, are established for
each school to meet.
If the school exceeds the threshold by one
point and moves ten percent or more of its students out of the
"Novice" level, it is considered successful and qualifies for
rewards.
Schools that improved, but did not meet their goals
must develop improvement plans and work to raise their levels of
achievement.
For those schools in crisis whose scores drop below
their baseline, assistance is made available.
Simply put, those school districts where students do
well on the KIRIS test are rewarded, and those school districts
where students do poorly are penalized.
The law provides for
sanctions to be imposed upon those in crisis (staff placed on
probation), and financial rewards are given to those districts
that are successful.
KRS 158.6455.
Therefore, each school
district in this state has a financial interest in the outcome of
the test scores of KIRIS examinations given within its district.
Early in 1994, prior to the KIRIS assessment tests'
being administered in the spring, the parents of Chad Triplett, a
senior, and Tracey Triplett, an eighth-grader (hereinafter "the
4
Tripletts") informed the Livingston County School System
(hereinafter "the school") that they did not want their children
to take the KIRIS assessment test.
When the 1993-1994 school
year commenced, the Livingston County schools had no policy
requiring students to take the KIRIS tests.
Thus, at first, the
Tripletts were told by the school that their children would not
be required to take the KIRIS test.
Subsequently, however, the
KBE informed the Livingston County school system that it would
hold all schools accountable for the performance of all students
and, in the absence of KIRIS assessment information about the
performance of a child, the school would be assigned a novice
level performance for that child.
Consequently, on February 14,
1994, the Livingston County Board of Education passed the
following policy:
Students shall complete all parts of KIRIS
assessment before advancing to the next grade
or graduating, including math and writing
portfolios.
Prior to the tests' being given, Mrs. Triplett requested to
review the tests, and on February 16 and February 18, 1994, she
was allowed to examine them.
There is some question as to how
much of the actual tests she was allowed to examine and how long
she was given to review the tests.
She was not allowed to take
any notes or make copies.
Based primarily on religious objections to the tests,
the Tripletts refused to let Chad and Tracey take the KIRIS
assessment test in 1994.
As a result of their not taking the
test, the Livingston County School Board refused to allow Chad to
5
graduate and Tracey to be promoted to the ninth grade, although
Chad and Tracey had completed all other necessary requirements
for graduation and promotion, respectively.
On May 25, 1994, the Tripletts filed the action herein
against the Livingston County Board of Education, seeking a
permanent injunction to prevent the school board from excluding
Chad from graduation and a declaratory judgment establishing that
Chad and Tracey had fulfilled all requirements for graduation and
promotion, respectively.
The petition for declaratory judgment
also requested that the court rule regarding the Tripletts'
claims of violation of privacy, infringement of their exercise of
religion, interference with their parental rights, denial of
their due process rights and their rights under certain federal
laws.
Both parties filed various affidavits in support of
their positions, including some from educational experts giving
their opinions regarding the merits or lack thereof of the KIRIS
assessment test.
Additionally, the Tripletts filed a request for
production of the KIRIS assessment test for review in preparation
for trial.
The court ordered that the test be delivered by the
school to a Special Commissioner who would monitor the review by
the Tripletts and their counsel.
Subsequently, the school made a motion for summary
judgment.
On February 22, 1996, the circuit court granted the
school's motion and dismissed the Tripletts' petition.
The court
noted that since the petition was for declaratory judgment
6
seeking a permanent injunction, it was an equitable action in
which the court must decide both issues of law and fact.
In the court's 21-page opinion and order, the court
reviewed the KIRIS exam questions in the record in light of the
specific objections raised by the Tripletts, and found that the
Tripletts' claims had no merit:
The Court finds nothing in the
examination questions which either interferes
with the parental rights or the control in
the upbringing of the children, infringes
upon the free exercise of religion nor the
establishment thereof, nor violates any of
the rights under the Family Educational
Rights and Privacy Act, nor their right to
privacy. While the KIRIS assessment
procedure as well as KERA itself may be
subject to political debate, the
implementation of that law has already been
held to be legitimate and is not an exercise
of arbitrary power in violation of Section
Two of the Kentucky Constitution. (See
Chapman v. Gorman, 839 S.W.2d 232 (1992)).
The court went on to conclude that it was not unconstitutional to
require all students to take the KIRIS exam.
The court did,
however, agree with the Tripletts' argument as to their right to
review the KIRIS exam questions.
The court ruled that the KIRIS
exam should be made open for review by the public.
In a
subsequent order the court expanded its earlier ruling to allow
the KIRIS exam to be viewed by the public at the Livingston
County Circuit Clerk's office.
From the February 22, 1996
judgment, the Tripletts now appeal the ruling regarding the
constitutionality of the KIRIS exam and the requirement to take
the KIRIS exam, while the school appeals from the rulings
allowing the KIRIS exam to be made open for public viewing.
7
We first address the Tripletts' argument that summary
judgment was premature in this case because material questions of
fact existed.
They specifically point to the affidavits of the
various experts in the record containing opposing views on the
KIRIS assessment exam.
The Tripletts also maintain that they
will present other evidence discrediting the KIRIS exam if the
action is allowed to proceed.
Summary judgment should be used to terminate litigation
when, as a matter of law, it appears that it would be impossible
for the respondent to produce evidence at trial warranting
judgment in his favor and against the movant.
Steelvest, Inc. v.
Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991).
The
function of a motion for summary judgment is to secure final
judgment as a matter of law when there is no genuine issue of
material fact.
Conley v. Hall, Ky., 395 S.W.2d 575 (1965).
We
would agree with the lower court that the issues in the present
case are matters of law, not fact.
While the determination of
the constitutionality of the KIRIS exam may involve factual
matters, the ultimate decision is one of law.
In a similar case
challenging a Louisiana act requiring the teaching of
creationism, the United States Supreme Court found that summary
judgment was proper, even in the face of uncontroverted
affidavits submitted by the respondent.
Edwards v. Aguillard,
482 U.S. 578, 107 S. Ct. 2573, 96 L. Ed. 2d 510 (1987).
We
believe the present case was proper for summary judgment since
8
the record contained everything necessary for the court to decide
the issues of law, which we shall now address.
The Tripletts argue that when the Livingston County
Board of Education passed the policy requiring that all students
take the KIRIS exam mid-year in the school year (February), it
failed to provide them with adequate notice of the requirement
and, thus, operated as an ex post facto law.
argument is without merit.
We believe this
The passage of the KIRIS exam
requirement did not punish any action that had already been taken
by the Tripletts and did not serve to prejudice the Tripletts in
any way.
The KIRIS exam requires no advance preparation beyond
the student's normal academic program; hence, further notice
would have served no purpose.
The Tripletts also argue that the local school board
did not have legal authority to require that all students take
the KIRIS exam.
Although there is nothing in KRS 158.6453 (the
statute mandating that the Kentucky Board of Education create and
implement an assessment program) specifically requiring that all
students must take the assessment exam, we believe statutory
authority exists for the local board of education to establish
such a policy.
KRS 156.160(1)(c) allows the KBE to promulgate
regulations regarding the minimum requirements for high school
graduation and requires that the KBE review the graduation
requirements in light of the expected outcomes for students and
schools set forth in KRS 158.6451.
provides:
9
704 KAR 3:305 § 3(1) & (2)
(1) Each student who satisfactorily
completes the requirements of this
administrative regulation and such credits
and additional requirements as may be imposed
by a local board of education shall be
awarded a graduation diploma.
(2) Local boards of education may grant
different diplomas to those students who
complete credits above the minimum number of
credits as established by the State Board for
Elementary and Secondary Education.
The above regulation permits local boards to establish additional
graduation requirements above the minimum requirements set forth
by the KBE.
Indeed, the concept of decentralization of schools
is a large part of KERA.
The individual schools are responsible
for their own performance on the KIRIS assessment exams and there
is much at stake for the individual schools in terms of rewards
and penalties.
See KRS 158.6455.
Therefore, each school
district should have the authority to set policy which relates to
the assessment process so long as it does not conflict with KERA
or the responsibilities delegated solely to the KBE by KERA.
We next move on to the Tripletts' primary claim that
requiring the Triplett children to take the KIRIS assessment exam
violates:
their constitutional right to free exercise of
religion; their constitutional right as parents to direct the
education and upbringing of their children, see Wisconsin v.
Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972); and
the Hatch Amendment to the Family Educational Rights and Privacy
Act, 20 USCA § 1232 (Hatch Amendment).
The thrust of the
Tripletts' claim is that the content of the KIRIS exam questions
offends their religious beliefs because the test:
10
establishes a
religious or moral code; invades the students' religious and
moral beliefs; discriminates on the basis of religion; and
compels the students to speak against their beliefs by selecting
morally objectionable responses.
We shall first address the Tripletts' allegation that
the KIRIS exam violates 20 USCA § 1232h(b) of the Hatch Amendment
which provides as follows:
No student shall be required, as part of
any applicable program, to submit to a
survey, analysis, or evaluation that reveals
information concerning (1)
(2)
(3)
(4)
(5)
(6)
(7)
political affiliations;
mental and psychological problems
potentially embarrassing to
the student or his family;
sex behavior and attitudes;
illegal, anti-social, selfincriminating and demeaning
behavior;
critical appraisals of other
individuals with whom respondents
have close family relationships;
legally recognized privileged or
analogous relationships, such as
those of lawyers, physicians, and
ministers; or
income (other than that required by
law to determine eligibility for
participation in a program or for
receiving financial assistance
under such program),
without the prior consent of the student (if
the student is an adult or emancipated
minor), or in the case of an unemancipated
minor, without the prior written consent of
the parent.
We find there is nothing in the exam which compels a student to
reveal any type of information listed in 20 USCA § 1232h(b).
portion of the exam does include a multiple-choice student
11
A
questionnaire in which the student is asked to give certain
factual information about himself or herself, such as how much
time he or she spends on homework each day and whether he or she
attended kindergarten, but the questionnaire is prefaced by the
caveat that if he or she does not feel comfortable answering any
question, he or she may leave it blank.
Also, certain essay
questions ask that the child view a situation from his or her own
perspective in responding to the question or statement.
However,
the child is not required to give any specific personal
information proscribed by the above Act.
We now turn to the Tripletts' constitutional claims.
The Establishment Clause of the United States Constitution and
its counterpart of the Kentucky Constitution guarantee that
government may not coerce anyone to support or participate in
religion or its exercise, or otherwise act in a way which
establishes state religious faith or tends to do so.
Lee v.
Weisman, 505 U.S. 577, 112 S. Ct. 2649, 120 L. Ed. 2d 467 (1992);
U.S.C.A. Const. Amends. §§ 1, 14; Ky. Const. §§ 1, 5.
The Free
Exercise Clause of both constitutions prevents the government
from regulating one's religious beliefs.
§§ 1, 14; Ky. Const. §§ 1, 5.
U.S.C.A. Const. Amend.
In Lemon v. Kurtzman, 403 U.S.
602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), the United States
Supreme Court applied the following three-part test in deciding
whether the Establishment Clause had been violated:
First, the statute must have a secular legislative
purpose; second, its principal or primary effect must
be one that neither advances nor inhibits religion,
Board of Education v. Allen, 392 U.S. 236, 243, 88
12
S.Ct. 1923, 1926, 20 L.Ed.2d 1060 (1968); finally, the
statute must not foster "an excessive government
entanglement with religion." [Walz v. Tax Commission
of City of New York, 397 U.S. 664, 668, 90 S.Ct. 1409,
1411, 25 L.Ed.2d 697 (1970)].
Lemon v. Kurtzman, 403 U.S. at 612-613.
In reviewing the KIRIS exam in light of KERA, we see
that the exam has the secular legislative purpose provided for in
KRS 158.6453(1), "to ensure school accountability for student
achievement of the goals set forth in KRS 158.645."
In reviewing
the content of the KIRIS exam questions in the record, we do not
see that the exam advances or inhibits religion, nor that it
fosters any government entanglement with religion.
While some
questions contain pop culture references, humorous elements, or
touch on current and/or controversial events or issues, we fail
to see how they could be interpreted as attempting to promote or
influence religious beliefs or send any message regarding
religious beliefs.
In adjudging that the content of the KIRIS exam itself
does not violate the Establishment Clause, we must do so from our
own concept of religion, and we do not presume to question the
genuineness of the Tripletts' claims that the KIRIS exam offends
their religious and moral sensibilities.
Nevertheless, not every
state action implicating religion is invalid if one or a few
citizens find such an action offensive.
Lee v. Weisman, 505 U.S.
577, 112 S. Ct. 2649, 120 L. Ed. 2d 467 (1992).
So long as the
state action does not, by any realistic measure, create any of
the dangers which the First Amendment was designed to protect and
13
does not so directly or substantially involve the state in
religious exercises or in the favoring of a religion as to have a
meaningful and practical impact, there is no First Amendment
violation.
Lee v. Weisman, supra.
In Smith v. Board of School Commissioners of Mobile
County, 827 F.2d 684 (11th Cir. 1987), plaintiffs objected to the
school's use of certain home economics, history and social
studies textbooks on grounds that they advanced certain religious
beliefs and, thus, violated the Establishment Clause.
The Court
upheld the use of the books and held that the government action
must amount to an endorsement of religion in order for the
government's conduct to have the primary effect of advancing
religion in violation of the Establishment Clause.
The Court
further stated that it is not sufficient that the government
action merely accommodates religion or confers an indirect,
remote, or incidental benefit on a particular religion or happens
to harmonize with the tenets of a religion.
Similarly, in Mozert
v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir.
1987) cert. denied by 484 U.S. 1066, 108 S. Ct. 1029, 98 L. Ed.
2d 993 (1988), parents objected to a school's requirement that
children read from a particular textbook they found offensive to
their religious beliefs.
The Court held that absent any proof
that a student was ever called upon to say or do anything that
required the student to affirm or deny a religious belief or to
engage or refrain from engaging in any act required or forbidden
by the student's religion, there was no violation of their right
14
to free exercise of religion.
Even assuming that some KIRIS exam
questions do conflict with certain religious beliefs held by the
Tripletts, the exam clearly does not have the primary effect of
advancing religion, nor do the questions require the students to
affirm or deny any religious belief.
In Rawlings v. Butler, Ky., 290 S.W.2d 801 (1956), an
action was brought against a public school because nuns who were
teaching at the school were allowed to dress in religious habit
and wear symbols of their religion.
The Court held there was no
First Amendment violation because the nuns did not inject
religion or the dogma of their church into what they taught.
Paraphrasing from a concurring opinion of Justice Jackson of the
United States Supreme Court in People of State of Ill. ex rel
McCollum v. Board of Education of School Dist. No. 71., 333 U.S.
203, 68 S. Ct. 461, 92 L. Ed. 649 (1948), the Court stated:
He further states there are 256 separate and
substantial religious bodies in this country
and if we are to eliminate everything that is
objectionable to any of these warring sects,
or that which is inconsistent with their
doctrines, "we will leave public education in
shreds." [333 U.S. 203, 68 S.Ct. 477.]
Rawlings v. Butler, Ky., 290 S.W.2d at 805.
Even if the governmental action substantially burdens a
religious practice, if it is justified by a compelling state
interest, it survives a free exercise of religion challenge.
Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d
965 (1963).
The First Amendment does not prevent the government
from regulating behavior associated with religious beliefs.
15
United States v. Lee, 455 U.S. 252, 102 S. Ct. 1051, 71 L. Ed. 2d
127 (1982).
In Employment Division, Dept. of Human Resources of
Oregon v. Smith, 494 U.S. 872, 879, 110 S. Ct. 1595, 1600, 108 L.
Ed. 2d 876 (1990), the Court held the "right of free exercise
does not relieve an individual of the obligation to comply with a
valid and neutral law of general applicability on the ground that
the law proscribes (or prescribes) conduct that his religion
prescribes (or proscribes)."
U.S. at 263.
Quoting United States v. Lee, 455
In Smith, supra, a showing of a compelling state
interest was not required because the law was valid and neutral
and of general applicability.
As to whether a strict scrutiny
analysis is required in the instant case, we turn to the case of
Vandiver v. Hardin County Board of Education, 925 F.2d 927 (6th
Cir. 1991) for guidance.
In Vandiver, supra, a student in Kentucky who had been
in a home study program sought to transfer to a public school,
and the public school required the transferee to pass an
equivalency exam in order to gain credit for the school work
performed in the home study program, pursuant to 704 KAR 3:307 §
2.
The student objected to the testing requirement on rather
tenuous religious grounds (studying for the test required more
work than God would want him to bear).
Nevertheless, the Court
considered his claim, as it did not question the sincerity of his
religious convictions.
Relying heavily on Smith, supra, the
Court found that the regulation at issue was generally applicable
16
and religion-neutral such that a strict scrutiny analysis was
unnecessary.
However, in dicta, the Court went on to further
interpret Smith, supra, and stated that if the statute not only
affects the free exercise of religion, but also burdens other
constitutionally protected rights such as that of a parent to
direct the education and upbringing of his children, the claim
remains subject to strict scrutiny.
Thus, although we deem the
KIRIS testing requirement in the instant case to be generally
applicable and religion-neutral, we shall nevertheless proceed
with a strict scrutiny analysis since the Tripletts additionally
claim that their parental rights have been violated.
The basis of the Court's ruling in Rose v. Council For
Better Education, Inc., Ky., 790 S.W.2d 186 (1989) is that
education is a fundamental right in Kentucky and that the
government must provide an efficient system of common schools
that would be substantially uniform throughout the state and
afford equal educational opportunities to every child within the
state.
If a constitutionally efficient educational system is one
that is uniform and provides equal opportunities, there must be a
way to measure whether all students are receiving equal
opportunities beyond simply the resources that are being
provided.
The performance-based assessment process mandated by
KERA is such a measuring device.
Our Supreme Court has
recognized the importance of statewide assessment of all schools
in Board of Educ. of Boone County v. Bushee, Ky., 889 S.W.2d 809
(1994), wherein the Court attempted to clarify the
17
responsibilities of the State Board, the local school boards and
school councils under KERA.
The Court stated:
Other responsibilities of the State
Board are directed in KRS 158.6453. These
directives primarily focus on the need for
statewide assessment of the achievements of
each local institution in terms of the stated
statewide objectives. These reflect the need
for statewide accountability for achievement
of outlined objectives.
. . .
These responsibilities clearly reflect
that area of education that most effectively
rests at the statewide level. In order to
assess the overall success of the educational
reforms, the legislature recognized that it
is imperative that a body representing
statewide interests be held accountable for
establishing a system whereby these
objectives can best be achieved. Further,
the statute recognizes that each individual
school will be held accountable to the State
Board for its performance. Also reflective
of this structural approach are the mandates
of KRS 158.6455 which require the State Board
to "establish a system of determining
successful schools and dispensing appropriate
rewards."
Id. at 813.
It appears that there is no higher priority in Kentucky
at the present time than education.
Therefore, the state's
interest in the improvement of our educational system through the
use of an assessment program such as the KIRIS exam is
sufficiently compelling to require all students to take the KIRIS
exam.
We do not see how an assessment process can measure
performance in terms of educational equality and progress unless
all students are required to take the exam.
18
We now move on to the Tripletts' claims regarding the
KIRIS assessment process.
They maintain that the KIRIS exam is
subjective and arbitrary and, therefore, lacks reliability in
that it does not measure either the child's or the school's
performance accurately.
One complaint in particular is that the
exam should be completely multiple choice.
(The exam contains
multiple choice, open-response and essay questions.)
Both sides
have submitted affidavits of experts stating their positions on
the KIRIS exam.
While the KIRIS assessment exam may not be
perfect (doubtless, no testing process is), we are not being
called upon, and indeed it is not our place, to pass on the
relative merits and flaws of the exam.
Rather, it is our
responsibility only to adjudge whether its requirement rises to
the level of a constitutional or statutory violation.
We hold
that it does not.
The final issue before us is the school's appeal of the
court's rulings that the KIRIS exam must be open for public
inspection.
The Tripletts contend that the public should be
allowed unfettered examination of such exams.
KRS 61.878(1)(g) provides the following exemption from
the Kentucky Open Records Act (KRS 61.870-61.884):
(1) The following public records are
excluded from the application of KRS 61.870
to 61.884 and shall be subject to inspection
only upon order of a court of competent
jurisdiction, except that no court shall
authorize the inspection by any party of any
materials pertaining to civil litigation
beyond that which is provided by the Rules of
Civil Procedure governing pretrial discovery.
19
. . . .
(g) Test questions, scoring keys, and other
examination data used to administer a
licensing examination, examination for
employment, or academic examination before
the exam is given or if it is to be given
again[.]
Assuming the KIRIS exam about which the Tripletts complain will
be administered again in the future, the KIRIS exam clearly falls
within the above-stated exemption even in view of the strict
construction requirement in KRS 61.871.1
However, the lower
court bypassed the statute and, instead, applied a balancing
test, finding that "[a]ny prejudice the Defendants may incur
because of this public disclosure is far outweighed by the
public's need to know."
Recently, the Supreme Court of Iowa was faced with the
same issue in Gabrilson v. Flynn, 554 N.W.2d 267 (Iowa 1996),
when a local school board member sought to make public a high
school assessment test.
The Court declined to apply a balancing
test, reasoning that there was no indication that the legislature
intended such a balancing of interests since they specifically
excepted examinations from the open records law.
Hence, the
Court ruled that the assessment exam was not covered by the open
records law and could not lawfully be disclosed.
The Tripletts argue that KRS 61.878(1) authorizes the
court to order that the KIRIS exam be made open for public
inspection.
The language of the statute does allow a court of
1
Once the test is given and if it will not be administered
again, KRS 61.878(1)(a) does not apply.
20
competent jurisdiction the authority to order an exempted record
to be open for inspection.
However, a court does not have
unbridled discretion in exercising that authority, and we believe
the lower court abused its discretion in the present case when it
ordered the KIRIS exam open for public viewing.
Given the
importance of the KIRIS exam as a tool for measuring the
efficiency and improvement of our schools as we have previously
discussed in this opinion, and its potential for abuse, we
believe the KIRIS exam should not be open for general public
viewing without a special showing of necessity beyond simple
curiosity as to its content.
In our view, permitting the exam to
be indiscriminately viewed by the public would interfere with the
accomplishment of the objectives for which it was devised.
It
would certainly jeopardize the integrity and reliability of the
exam.
However, where, as here, there are specific allegations
about the exam that are the subject of a lawsuit, the court could
properly order the exam open for limited viewing for purposes of
the litigation.
Accordingly, the court's orders requiring the
KIRIS exam to be open for public inspection are reversed and the
cause remanded for an order sealing the portions of the record
containing the KIRIS exam questions.
The Tripletts also argue that they, as parents, have a
right to view the KIRIS exam under the following provision of 20
USCA § 1232h(a) of the Hatch Amendment:
All instructional materials, including
teacher's manuals, films, tapes, or other
supplementary material which will be used in
connection with any survey, analysis, or
21
evaluation as part of any applicable program
shall be available for inspection by the
parents or guardians of the children.
In reading the above provision, we do not believe that
an assessment exam such as the KIRIS exam falls within its
purview.
Although the KIRIS exam is a requirement for promotion
and graduation, it is not a part of the student's regular
curriculum and has no instructional purpose.
For the reasons stated above, the judgment of the
Livingston Circuit Court is affirmed in part, and reversed and
remanded in part for proceedings consistent with this opinion.
ALL CONCUR.
22
BRIEF AND ORAL ARGUMENT FOR
APPELLANTS (IN 96-CA1046)/APPELLEES (IN 96-CA1371):
BRIEF AND ORAL ARGUMENT FOR
APPELLEES (IN 96-CA1046/APPELLANTS (IN 96-CA1371):
James F. Dinwiddie
Leitchfield, Kentucky
David L. Yewell
Owensboro, Kentucky
23
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