DEMONSTRATING LEGAL SUFFICIENCY WITHOUT THE TEST SCORE TRAP.

New Mexico: Meeting Community Needs

The progression of the Yazzie/Martinez litigation in New Mexico is illustrative of the need for an approach that focuses on the real needs of students and communities, with their input along the way in devising appropriate remedial action, rather than simply seeking funding in an attempt to improve performance on existing data accountability metrics offered by federal and state governments over the last 30 years.

Two sets of plaintiffs filed actions in 2014 that were consolidated in the Yazzie/Martinez suit. In 2018, the New Mexico state trial ruled in favor of the plaintiffs. Judge Singleton said the state was violating the state constitutional rights of public-school students to the resources, funding, and programming that will enable them to succeed. The state also violated statutory provisions governing the education of English Language Learners and Native Americans students. She said the education system was especially lacking in the cases of at-risk students, which includes children from low-income households, students of color, English Language Learners, and students with disabilities. The State has a constitutional obligation to provide at-risk students with a sufficient education that prepares them for career or college.

The Court honed in on the failure of the state to insure adequate curricular materials, including culturally appropriate curriculum for Native American and Latino students, computer access and, most importantly, teaching quality. On the outcome front the Court discussed state test score deficiencies, graduation rates, and the disproportionate need for college remediation in marginalized populations. Singleton ordered the state to make an overhaul to its public education system immediately in the form of implementing a comprehensive remedial plan.

In September 2024, frustrated with the state’s lagging efforts at specific remediation for the affected communities despite the allocation of additional funding by the legislature, plaintiffs filed a 260-page Non-Compliance Motion and Request for Remedial Action Plan. Growing absenteeism was not being adequately addressed by the state, with a 119 percent increase from 2019 to 2023. The Motion argued that the state had insufficiently targeted programs for Native American students, English Language Learners, students with disabilities and students from low-income families, pointing out very specific deficiencies like the failure to support and maintain adequate pre-K programming with a lack of slots and persistent teacher vacancies, inadequate extended learning time and after-school programming, insufficient research-based reading programs, inadequate reduction of class size, and insufficient counselors and social workers. Teacher quality had also not been adequately addressed.

In April 2025, the Court found the system still unconstitutional and ordered the state to devise a comprehensive plan to address the deficiencies. They hired “outside expert consultants” to devise a remedial plan, released in November 2025. In February 2026, plaintiffs objected to the plan based on community and expert input. Community input was particularly hostile to testing metrics. The core objection was that the “PED organizes the Plan around systemwide inputs, including instruction, educators, student supports, and funding, without centering the four at-risk student populations who are the subject of the Court’s findings and order.” The plaintiffs asked for a revised plan built with members of the community: New Mexico experts, educators, Tribal leaders, families, and subject-matter experts having a central role in shaping, leading, and implementing the plan. They asked for targeted remedies – not one-size-all reforms – for students most impacted: Native students, English learners, students with disabilities, and low-income students. And they asked for a funded multi-year plan with timelines and clear accountability measures, including assigned responsibilities, measurable outcomes, and regular public updates on progress.

The relief requested is very specific in addressing both incorporating community and student input into designing appropriate remedies, and curricular, instructional and support remedies that are directly targeted to the at-risk student populations. The objection to the State’s plan is that by planning programs that are more broadly used to teach reading and address general learning deficiencies, it fails to address those specific needs. The New Mexico litigation highlights an important function of well-crafted school funding lawsuits: the development of community trust in the public school system, a trust that has been too often betrayed by the dominant accountability framework.

Kentucky: Educating for Citizenry

In 1989, the Kentucky Supreme Court ruled that education was a fundamental right under the state constitution and that the Commonwealth had failed to establish an efficient system of common schools. It went on to define the nature of that right and the state’s obligation to ensure the right, articulating seven capacities that constitute “an “adequate education”. In response to Rose, the General Assembly enacted the Kentucky Education Reform Act (“KERA”), a series of sweeping reforms, including a new school funding formula that substantially increased funding for all students and aimed to ensure equity in funding among school districts, an assessment and accountability system, extensive professional development for teachers, and support services for at-risk and disabled students.

The KSVT et al. v. Commonwealth lawsuit filed last year argues that after the recession of 2008, the Commonwealth failed to maintain reasonable efforts to comply with Rose and KERA. At the core of the allegation is that students in Kentucky’s poorer districts and schools are not getting the education they need to participate as active citizens in the life of the Commonwealth. Schools are not providing the educational resources to allow these students to attain the capacities outlined in Rose, which range from college and career readiness, to communications skills, knowledge of societal systems to enable them to make informed choices, understanding of governmental processes to facilitate civic participation, mental and physical wellness and grounding in arts and culture for self-realization. These deficiencies include lack of libraries, access to AP classes, civic education, debate, support for mental health, art and music teachers, and many other programs and supports that provide the grounding to achieve the Rose capacities.

The focus of the suit on the broader criteria of Rose in defining the Commonwealth’s constitutional and legal obligations for education is instructive. The Complaint recognizes that adherence to a narrow system of accountability based on test scores has done a disservice to the need to develop graduates who are ready to be full adult citizens with prospects of college and career success. In the last few years, Kentucky has attempted to reconsider that accountability system by moving to a more robust system of local school accountability through its Kentucky United We Learn system, where local districts are asked to develop their own community-determined measures beyond state requirements. The Kentucky United We Learn council also is structured to give voice to all stakeholders in the system: students, parents, teachers and local community members. The KSVT plaintiffs themselves are active participants in the statewide Council as well as local district teams.

The combination of litigation and a shift to true local accountability and community voice can work together to compel funding for the inputs needed for outcomes that matter: active and informed participation of future citizens of the Commonwealth in all aspects of its civic and economic life. The definition of adequacy pursued in Kentucky is one focused on individual student flourishing and democratic participation; funding for the inputs underlying those requirements are within judicial capacity to direct.

Pennsylvania: Overwhelming with Evidence

What accounts for the total victory of plaintiffs in the William Penn litigation? How do you get an 800-page opinion documenting a constitutional violation so palpable, that the state government subsequently pledged to make up $5 billion in underfunding for the school systems, with the last three legislative sessions making real progress towards addressing the shortfall.

Plaintiffs’ attorneys, led by the Education Law Center simply flooded the courtroom with proof of input disparities and deficiencies that were so stark and correlative to outcome disparities on state tests, graduation rates and college success, as well as such highly compelling testimony from superintendents, teachers, students and experts about the impediments to student learning and success that were being faced, that the court felt it had no choice but to rule the system unconstitutional. Her conclusion:

“The findings regarding inputs, such as funding, courses, curricula and programs, staffing, facilities, and instrumentalities of learning, demonstrate manifest deficiencies between low-wealth districts, such as Petitioner Districts, and their more affluent counterparts. Educators credibly testified to lacking the very resources state officials have identified as essential to student achievement, some of which are as basic as safe and temperate facilities in which children can learn. Educators also testified about being forced to choose which few students would benefit from the limited resources they could afford to provide, despite knowing more students needed those same resources. The effect of this lack of resources shows in the evidence of outcomes, which also must be considered to determine if the system is “thorough and efficient” and to give effect to the phrase “to serve the needs of the Commonwealth.”

Unsurprisingly all outcome measures presented to the court verified the input disparities put into evidence. Systemic inequities manifest themselves in so many different ways which tend to be reinforcing. Test score disparities are symptoms of deficiencies rather than their cause. The underlying input problems are what brings claims to life during the course of a trial.

New York: Defining Sound Basic Education and Future Prospects

One of the seminal school funding litigation victories occurred in New York in the course of the decade plus long battle in the case of Campaign for Fiscal Equity (CFE) v. The State of New York. The case is instructive regarding the definition of constitutional adequacy and its implications for future potential adequacy suits.

In its first pass at defining what constitutes an adequate education, the New York Court of Appeals defined an adequate education as "consist[ing] of the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury.” The court considered establishing quantifiable outputs–specifically, state-wide standardized test results–as a test for adequacy, but rejected this approach after finding that any output measurement is subject to multiple causation factors. Instead, while the Court deemed scores “helpful” it instructed lower courts to focus on inputs, listing physical facilities, "instrumentalities of learning," and "minimally adequate teaching" as constitutional requirements. Consideration of inputs would form the primary measure of adequacy, rather than pure reliance on outputs or some other legislatively crafted measure.

After a seven-month trial, the lower court, defining “productive citizenship" as being capable of civic engagement and significant economic contributions beyond that of low-level jobs, found the education provided to New York City public school children inadequate in terms of the quality of teachers, curriculum implementation, school buildings, class size, and instrumentalities of learning.

After an intermediate appellate reversal, the Court of Appeals upheld the trial court and elaborated on its definition of adequacy. The court defined an adequate education as requiring the state to teach "skills fashioned to meet a practical goal: meaningful civic participation in contemporary society.” Responding to the appellate division's focus on eighth-grade standards, the court clarified that the education article required the state to provide "a meaningful high school education. The Court restated its emphasis on educational inputs as the primary measure of adequacy, but clarified the connection of inputs to outputs: The plaintiffs' showing of inadequate inputs creates a presumption of a constitutional violation, but the state may rebut this presumption with a showing of positive outputs.

The implication here is that despite broad input deficiencies, the state can show that if test scores aren’t so bad, it would be insulated from a constitutional violation. The Court, perhaps unwittingly, effectively elevated test scores to constitutional status. But the New York Court of Appeals rejected Regents exams as the constitutional standard. Defining adequacy in terms of preparing democratic citizens provides significant guidance to courts in determining what evidence of adequacy is most valuable-evidence of inputs. To fulfill the goals of education clauses, citizens must have the capability to understand the various complexities of public issues. Something more akin to the Rose approach is both safer and more expansive ground for advocates of increased funding for schools and to support at-risk students.

The evolution of New York State’s approach to graduation requirements through its development of a Portrait of a Graduate, development of multiple pathways to graduation, support of systems of assessment that demonstrate knowledge, skills and competencies, and commitment to moving away from the Regents exams as a graduation requirement, further supports the approach of focusing on key inputs and broader civic readiness outcomes. If a new group of plaintiffs came to the fore to challenge the educational adequacy of school systems in New York, they could avail themselves of a state-sanctioned standard of constitutional adequacy that is more akin to the Rose standards and was developed through broad community input.

A Brief History of School Finance Cases

School finance litigation is an exercise in federalism, dependent on state law and state court systems. The past 50 years have been a struggle to achieve and sustain increased funding for high-needs communities. The rise of state tests in the 1990s became one convenient way for plaintiffs to demonstrate education inadequacy, but has been nothing close to a hoped-for litigation cudgel. Successful plaintiffs have used myriad evidence of deficient inputs and outputs, depending on the peculiar facts of state systems.

After San Antonio v. Rodriguez in 1973, which rejected a federal constitutional right to education, advocates went to state courts and made arguments under state constitutions. The first wave of state cases argued for equal funding under state education and equal protection clauses. These suits were not about defining the quality of education that had to be provided. Robinson v. Cahill (NJ) and Serrano v. Priest (CA) were both victories for plaintiffs in challenging state funding schemes. But California’s response was captured in the anti-tax movement and instead of funding poor districts to match wealthy ones, the State lowered the baseline. New Jersey didn’t get real reform until the adequacy cases where the State Supreme Court ordered specific remedies (Abbott v. Burke) that were litigated over the course of 25 years.

The second wave of school finance litigation began with the Rose decision in Kentucky in 1989 which set out seven criteria for a constitutionally adequate education that read like a current state Portrait of a Graduate. Since the late 1980s, advocates have had varying degrees of success getting courts to order changes in funding formulas, additional state funding, and specific remedies. In the mid-90s civil rights advocates began to see state standards and tests tied to them as a way of demonstrating that their populations were receiving inadequate educations and driving resources to underserved schools and districts. This push for test-based education reform also helped give rise to No Child Left Behind in 2001.

More recent litigants in New Mexico and elsewhere, following the strategies employed in earlier cases like Abbott v. Burke in New Jersey, have argued for specific relief for at-risk communities in the form of remedies like culturally relevant curriculum, services for ELLs and students with learning disabilities, opportunities for civic education, internships, and AP classes. The Pennsylvania Court order resulted in the spending of a lot more state money on education. Some recent successful cases have also focused on very specific deficiencies, like lack of AP classes, literacy efforts, or teacher pay. Plaintiffs in these cases and others have used poor NAEP and state test scores in complaints to make the case that the system was failing; however, those testing deficiencies have not been the predicate for prayed-for relief which, rather than explicitly seeking to raise test scores, focuses on inputs necessary for the ultimate result of college and career readiness.

The Justiciability Question

A threshold question for courts is whether they have the legal capacity and ability to intervene to determine whether or not the State has met its Constitutional obligation and to order remedies that require increased State spending and/or implementation of specific programs to remedy deficiencies. The question is referred to as one of “justicability”: whether there are judicially discernable and manageable standards to determine legal principles, review evidence and order relief, or whether the Constitutional question must be left up to the political branches of government because it is beyond the power and competence of courts.

Most state court systems have ruled that state constitutional provisions pertaining to public school financing are judicially enforceable. Seven states are outliers, including most recently Nevada in 2022, having refused to rule on challenges to educational adequacy as being “non-justiciable.” Several legal scholars have made convincing arguments that invoking the political question doctrine when state Constitutions explicitly provide an enforceable education right is an abrogation of the judicial function.

Courts that have taken the leap to define constitutional education adequacy standards and have gone further to order revised funding formulas and specific programmatic remedies have found justiciable standards in either those already promulgated by the legislature or administrative agency, or have relied on broader history, context and other classic common law tools to articulate their own standard underpinning constitutional relief. Under both theories articulable standards can be found to overcome the justiciability challenge. Justification for judicial action on education adequacy mirrors those proffered in other contexts where positive state constitutional rights are found, like housing and elements of health.

In the education context, the existence of test score disparities or substandard performance as an educational outcome have not moved a court one way or another to determine whether the education right is judicially enforceable. The justiciability question has largely turned on what could best be characterized as political considerations. The shift in judicial opinions on the justiciability question in two states based on the composition of the court hearing the case shifting over time provides support for this contention. In the Leandro case in North Carolina, a Democratic to Republican shift on the State Supreme Court resulted in the dismissal of a broader statewide remedy ordered by a lower court judge, whereas an earlier court had recognized the courts’ role in education adequacy remedies and remanded to the lower court for relief determination. In Pennsylvania, the State Supreme Court in Marrero in 1998 found the adequacy claims to constitute a non-justiciable political question. In the William Penn case, however, the trial court judge, later affirmed by executive and legislative action, rejected Marrero and ordered the state to address funding issues, finding that it had failed in its constitutional education obligations.

Given the politicization of these determinations, certainly at the level of justiciability, advocates should aim for the remedial outcomes that best serve students and families and their constituents rather than focus excessively on the need for precision of the judicial standard. There is no need to hang plaintiffs’ hats on test scores; using inputs and other more consequential outcomes provide a standard if the court is not motivated to kick the constitutional problem to the political branches. As demonstrated elsewhere in this paper there are many forms of proof that can be utilized to demonstrate inadequacy as well as specific remedial needs that have proven legally effective.

Determining the State Obligation to Its Students

A key question for education advocates and school funding litigants is when taking responsibility to address the question, how do courts define the parameters of the state’s constitutional obligation to provide an adequate and equitable education to its school population? Wrapped into that question is how can plaintiffs best build cases that the state has not met its obligations in a manner that leads to specific remedies that best serve important educational outcomes for students and underserved communities.

When courts are willing to take on the adequacy project, they have taken a variety of approaches to defining adequacy and subsequently ordering remedial action. Some courts have been highly deferential to legislatures defining and fixing the problem of their own accord even when finding a constitutional violation due to rank funding disparities, some have relied on the state’s own legislative and administrative articulation of standards and outcome measures (test scores, graduation rates, etc.) to determine or at least guide their enforceable definitions of adequacy, and some have looked to broader notions of the type and level of education needed to function in modern society and have imposed that standard as constitutional obligation. Courts in Wyoming, North Carolina, New Hampshire, and New Jersey, for example, have described the ultimate aim of public education in similar terms: to prepare students to participate as citizens and compete in the employment market or for admission to higher education.

Given the complexity of modern American and global society, a state’s obligation to provide an adequate education contains many facets. The concept becomes an evolving and moving target with the evolution of what is needed to be a functional and productive adult. Assuming that the state’s obligation extends through a meaningful secondary school education that provides an equitable opportunity for students to learn and to move on to college and/or career, that obligation certainly extends beyond achieving minimum scores on standardized tests. High school graduation requirements are evolving nationally with increased recognition, through development of Portraits of a Graduate and competency-based criteria, that developing skills such as communications, collaboration and persistence, are just as important as any specific academic or technical knowledge in the education firmament. Thus, constitutional adequacy from an outcomes standpoint may only properly be analyzed through a broadly defined set of expectations, similar to the Rose criteria in Kentucky, with specific programs needed for all students to be able to meet those expectations. Courts do have the institutional role of putting the constitutional obligation to the political branches. Given the challenges of that exercise judicially, it may be that tangible, identifiable input requirements are a more appropriate indicator of adequacy, insofar as the inputs are demonstrably necessary to develop fundamental skills, such as reading, writing, and basic math in young children, the critical thinking skills necessary to understand complex adult issues in older children, and the range of durable skills and competencies that graduates need for college and/or career.

The Role of Test Scores

With the advent of NCLB and the reporting of student test data by subgroup, disparities in test scores were used by plaintiffs as one of the proof points to demonstrate inequality and an absence of educational adequacy in several funding suits. Test score disparities inevitably were a reflection of key input disparities among districts. The argument made by plaintiffs has not been that a failure to meet a particular test outcome is an indicator of inadequacy; it is that differences in test scores provide output-based corroboration of under-resourced districts. The problem with relying excessively on test score deficiencies as a proof comes at the remedy phase. Plaintiffs can be boxed into a corner of needing to prove that increased resources will actually improve relevant test scores as well as the amounts necessary to do so, which has been subject to costly and pitched expert battles over the role of resources in improving test outcomes. Using test score outcome measures to prove adequacy implies that the necessary remedy to achieve an adequate education is to improve test scores, a remedial pursuit that can undermine the quality of education more broadly and fail to address the broader notion of an adequate education as defined in cases like Rose.

Furthermore, as demonstrated by plaintiffs in the Yazzie/Martinez suit in New Mexico, state funding remedies designed to narrowly address test scores fail to address core education adequacy issues for a variety of communities and students who are alienated by single-minded efforts to improve test scores, causing rampant absenteeism and disengagement. This misprioritization of the fruits of victory can perversely undermine education and a variety of other life outcomes for students. And as James Ryan points out, to the extent doing well on tests is the measure of adequacy, there will be correspondingly less pressure to require schools to do any more. Whatever pressure exists, moreover, will have to contend with the fact that resources are pegged to standards and tests and not meant to support curricular offerings, facilities, or extracurricular activities that are neither tested nor covered by the standards. Cases in Texas, New York and North Carolina provide a cautionary tale where improving test scores were argued as enough to remedy inadequacy even when there was resource disparity. The New York court in the CFE case ultimately rejected Regents exam test scores as the measure of adequacy, properly considering outputs too facile a measurement of adequacy because poor test scores themselves do not identify the causes of poor performance. In CFE II, the New York Court of Appeals found that enshrining the Learning Standards through Regents exam performance would improperly “cede to a state agency the power to define a constitutional right.”

In one of the most recently filed adequacy cases, Kentucky Student Voice Team (KSVT) v. Commonwealth of Kentucky, the plaintiffs – students expressing their disaffection with the public education they have been afforded – make the claim that by narrowly focusing the state’s accountability and assessment systems on standardized tests, Kentucky has failed to provide a constitutionally adequate education as defined by Rose. The Complaint begins with the premise that most of the seven Rose capacities emphasize the skills students will need to function productively as capable citizens, criteria that have been adopted explicitly by many other state courts around the country. The Complaint alleges state failure at every level of Rose, emphasizing the critical thinking, oral and written expression skills, and functional literacy predicates necessary for active citizenship. Significantly, the Complaint alleges that “inadequate accountability and assessment systems and widespread reliance on rote learning and standardized testing in Kentucky’s schools, in fact, discourages development of critical analytic skills.”

The Kentucky Supreme Court specified in Rose that all students need to acquire “sufficient knowledge of economic, social, and political systems to enable the student to make informed choices.” 790 S.W.2d at 212. According to the Complaint, such skills require, at a minimum, substantial knowledge of history, economics, and the workings of the American political system at the federal, state, and local levels. Yet students leave school with insufficient knowledge of economic, social, and political systems to make informed choices in their personal lives and to participate as capable voters and jurors in the federal, state, and local political systems. Why? According to the Complaint, since the enactment of NCLB in 2002, many schools have reduced the amount of instructional time allotted to instruction in history and social studies in order to increase the amount of time available for instruction in reading and mathematics, especially in the elementary and middle schools. The Complaint also makes the point that the state standards, in attempting to enforce Rose, call for inquiry practices in social studies in order to have students undertake the questioning, investigation, use of evidence and communicating of conclusions necessary for citizenship but with the exception of scattered AP classes to which most students do not have access, teachers don’t teach social studies through the inquiry method. KSVT indicts the entire accountability and assessment system as being insufficient and detrimental to actually enabling Kentucky’s public schools to meet their Rose obligations: “Defendants’ assessment and accountability systems emphasize paper compliance and punitive action, with little or no qualitative assessment of information; they provide virtually no formative information or guidance to assist schools and districts in improving instruction and services.”

As demonstrated by the Kentucky litigation, the drive for adequacy, equity and funding that provides the opportunity for students in under-resourced districts to be able to function as active citizens in our modern complex society cannot begin or end with test score analysis. Low NAEP scores relative to other states or racial and socioeconomic groups, while providing information on basic reading and math competencies and evidence of deficiencies in some states, are invariably a reflection of documented input deficits and mirror other more telling outcomes. Funding that would, if it could, elevate those scores to some declared cut score of “proficiency” would not solve the larger and deeper problem of providing an education that enables actual student flourishing and full civic and economic participation.

The Rise of Portrait of a Graduate

States and districts have increasingly developed a different set of criteria to determine what they see as the necessary attributes of a graduate of the primary and secondary school system apart from the ability to take and pass academic coursework. These “portraits” or “profiles” of a graduate attempt a holistic look at the skills and competencies students need to master to thrive in work, postsecondary educational opportunities, community, and their personal lives. The idea of the portrait of a graduate is to provide a well-rounded view of student success, which includes academic skills, social and emotional (or durable) skills and civic characteristics that students should master as they graduate high school. Ideally, they help guide school districts in how to undertake teaching and learning that develops the identified skills that students should have by high school graduation. Ultimately, a state’s portrait of a graduate is the vision that establishes the skills and aptitudes that it believes, based on a stakeholder input, graduates need to be successful as adults. In other words, the portrait defines the obligation of the state and/or school system to the students it educates.

At least 21 states have developed or are in the process of developing statewide portraits of a graduate. They are: Arkansas, Hawaii, Indiana, Kansas, Kentucky, Maine, Massachusetts, Michigan, North Carolina, North Dakota, Nevada, New Mexico, New York, Ohio, Pennsylvania, South Carolina, Utah, Virginia, Vermont, Washington and Wyoming. Additionally, 100s of districts around the country have developed their own local portraits of a graduate.

The trend has been captured by the AASA, the School Superintendents Association, which runs a Portrait of a Graduate Academy in partnership with the nonprofit Battelle for Kids. The Academy attempts to guide districts in coming up with their own visions of student success. Importantly, this effort seems to transcend typical modern partisan politics. Both very blue and very red states have undertaken the effort. Having young people prepared to contribute meaningfully to society and the economy, and making that the object of the school system, seems a fairly universal goal. Unsurprisingly, the array of most common characteristics of graduate portraits around the country very much align with the seven Rose criteria for a constitutionally adequate education.

Some specific examples of graduate profiles help illustrate the expectations states increasingly have of the products of their school systems:

1. In Kentucky, a successful student is an engaged citizen, critical thinker, effective communicator, empowered learner, creative contributor, and productive collaborator, according to the state’s portrait of a learner.
2. In South Carolina, successful students should be able to read critically, express ideas, investigate through inquiry, reason quantitatively, use sources, design solutions, learn independently, navigate conflict, lead teams, build networks, sustain wellness, and engage as a citizen, according to the state’s profile of graduate competencies.
3. In New York, the portrait describes a successful graduate as someone who is a critical thinker, a creative innovator, academically prepared, reflective and future focused, an effective communicator, and a global citizen. Culturally responsive and sustaining education sits at the center of the six skills in the portrait.

Litigators and civil rights advocates need to be able to demonstrate deficiencies in the opportunity of students in underfunded and underserved schools and districts to be able to attain the expected profile of a school system graduate. Expert testimony and building out cost models on the inputs necessary to attain those competencies and outcomes, rather than simply worrying about the cost of raising test scores is necessitated by the shift in goalposts of state educational systems and judicial consideration of complex modern societal requirements. This shift by the political branches is more in line with judicial definitions of constitutional adequacy in Rose and cases across the country that adopt similar formulations.

Different Kinds of Assessments

Adoption of portraits of a graduate have been accompanied increasingly by shifts in how schools across the country assess student learning. States have recognized that rote memorization and learning that can be assessed effectively through multiple-choice tests are not adequate or desirable measures of preparation for college, career and citizenship. They also abandon entire swaths of the student population who are capable of demonstrating their skills and success in more authentic ways. There are currently only six states that require passage of traditional exit exams for high school graduation. That number is down from a high of 27 states in the wake of the passage of No Child Left Behind (NCLB) in 2001. The current number is at the lowest level since the mid-1990s, prior to implementation of NCLB. Standardized testing has thus been largely abandoned nationally as the measure of ultimate success of students as they wind their way through the education system.

The shift away from exit exams is based on a number of factors. There is an understanding that standardized tests of academic performance are a poor measure of the skills and knowledge graduates need to function in the modern workforce and citizenry. There is a growing movement toward other measures and assessments of student performance that reflect real-world tasks, with states creating multiple pathways towards the demonstration of college and/or work-ready skills and knowledge. States have realized that exit exams, because of some of the inherent sorting and discriminatory properties of that type of testing have disproportionately harmed Black and Latino students, as well as English Language learners and those with learning disabilities.

Among states that have recently shifted away from exit exams are Indiana, Ohio, New Mexico, Washington and New York. In each of those cases, the state is developing ways of assessing student learning and post-graduate readiness through performance assessments, capstones and portfolios, creating multiple pathways to a diploma that align with student post-graduation goals, and conferring diploma seals for demonstrations of competencies and mastery in different areas (like foreign language proficiency, STEM, creative arts, etc,). Adequacy suits will need to put the onus on the state to ensure that all students are receiving the resources to succeed under these new diploma frameworks.

The movement towards performance assessment can give plaintiffs a different, but ultimately more powerful set of outcome tools to test schools’ adequacy. Several states – New York, Colorado, New Mexico, North Carolina , Nevada, Indiana, and Rhode Island – are moving towards models where performance assessments are used to assess student learning in a cumulative way, including capstone projects and graduation level performance assessments. ETS and the Carnegie Foundation have partnered in a Skills for the Future that is piloting with six states to engage in competency-based measurement of durable skills. Several consortia of districts and schools, like the New York Performance Standards Consortium have developed systems of graduation level assessments in the core academic subjects that evaluate student graduation readiness using psychometrically valid and reliable normed rubrics. Because these assessments measure student competencies and skills that align with graduate profiles, and evaluate the kind of deeper learning and critical thinking necessary for the demands of the current workforce and citizenry, performance on these measures is a truer indicator of educational adequacy. Technology can help further scale tasks and evaluation of student work to the point where deficiencies in performance outcomes in districts and particular populations can inform the need for additional resources to meet the requirements of adequacy standards. As states incorporate performance assessments into systems of evaluation of student learning they can serve the outcome disparity information function of standardized tests while encouraging the kind of teaching and learning that will better address Rose-like adequacy standards and avoid the pitfalls of excessive testing narrowing opportunity for marginalized student populations.