Board of Ed. of Northport-East Northport Union Free School Dist. v. Ambach

• Decision Date: 23 January 1981
• Citation: 436 N.Y.S.2d 564,107 Misc.2d 830
• Parties: In the Matter of the Application of The BOARD OF EDUCATION OF the NORTHPORT- EAST NORTHPORT UNION FREE SCHOOL DISTRICT, "Abby" and "Richard", by their Guardian ad Litem, John P. Bracken, Petitioners, v. Gordon M. AMBACH, individually and in his official capacity as Commissioner of Education of the State of New York, and Joseph J. Blaney, individually and in his official capacity as the Acting and/or Deputy and/or Assistant Commissioner of Education of the State of New York, Respondents, for a Judgment pursuant to Article 78 of the CPLR.
• Court: New York Supreme Court

Page 564

436 N.Y.S.2d 564

107 Misc.2d 830

In the Matter of the Application of The BOARD OF EDUCATION OF the NORTHPORT- EAST NORTHPORT UNION FREE SCHOOL DISTRICT, "Abby" and "Richard", by their Guardian ad Litem, John P Bracken, Petitioners, v. Gordon M. AMBACH, individually and in his official capacity as Commissioner of Education of the State of New York, and Joseph J. Blaney, individually and in his official capacity as the Acting and/or Deputy and/or Assistant Commissioner of Education of the State of New York, Respondents, for a Judgment pursuant to Article 78 of the CPLR.

Supreme Court, Special Term, Albany County.

Jan. 23, 1981.

Ingerman, Smith, Greenberg & Gross, Northport, for petitioner, Board of Education.

John P. Bracken, East Setauket, guardian ad litem of "Abby" and "Richard".

Robert D. Stone, Albany (Jean M. Coon, Albany, of counsel), for respondents.

ROBERT C. WILLIAMS, Justice.

This is an Article 78 proceeding wherein the petitioners seek to permanently enjoin the respondents from enforcing an order of Respondent Blaney, Acting Commissioner of Education, dated August 8, 1979. ¹ Petitioners further seek a judgment validating the issuance of certain diplomas by Petitioner Board of Education of the Northport-East Northport Union Free School District (Board) to the individual petitioners.

The Board brought this matter on by order to show cause issued by the Hon. Con. G. Cholakis on August 15, 1979. Respondents moved to dismiss same on a number of grounds including the limitation upon the review of legislative acts by way of Article 78. In its decision and order of September 18, 1979 this Court citing Town of Arietta v. State Board of Equalization and Assessment, 37 A.D.2d 431, 326 N.Y.S.2d 325, found that the matter was properly before it. The Court further held that the respondents were enjoined from enforcing the order complained of pending the determination herein.

The Court sua sponte determined that the respective interests of the individual students should be protected. John Bracken, Esq. was appointed Guardian ad litem for the students and permitted to interpose a petition on their behalf.

Pursuant to Civil Practice Law and Rules § 7804 subdivision (h) a trial on the numerous issues of fact presented was held during a one week period in the summer of 1980. As directed at trial, following the completion of the lengthy transcript thereof the parties presented post-trial memorandums and proposed findings, a further opportunity to respond to the initial submissions was permitted, the case was fully submitted as of January 16, 1981.

Abby and Richard are handicapped within the definition of the applicable Federal and State statutes ², prior to their graduation in June of 1979 they were students in the school district governed by the Board. At the time in question Abby was 20 years old and attended James E. Allen High School in Dix Hills, New York operated by the Board of Cooperative Educational Services (BOCES). ³ She suffers from a neurological impairment ⁴ which allegedly affects her ability to handle arithmetical computations. Richard was 21 years of age in June, 1979. ⁵ He was classified by the school district's Committee on the Handicapped (COH) ⁶ as trainably mentally retarded ⁷ and attended James E. Allen School in Melville, New York, also operated by BOCES.

Abby and Richard were assigned individual education plans (IEPs) in compliance with federal and state statutes. ⁸ After being recommended for graduation by their respective schools, the COH on March 18, 1979 recommended both Abby and Richard for graduation on the basis of successful completion of their respective IEPs. ⁹ By resolution of the Board approved June 18, 1979 both Abby and Richard were awarded local high school diplomas.

At the time of the award of diplomas neither student had met the testing requirement set forth in the Commissioners Regulations for issuance of diplomas. Section 103.2 of the Regulations of Commissioner of Education (8 NYCRR § 103.2) provides in pertinent part:

"(a) Local diploma. In order to secure a local high school diploma, the following requirements must be met:

(2) The demonstration of competency in the basic skills: (i) by passing the following examinations:

(a) effective June 1, 1979 through May 31, 1981, either the Basic Competency Test in Reading or the Regents Comprehensive Examination in English, and either the Basic Competency Test in Mathematics or a Regents examination in mathematics,

...."

Both the Basic Competency Test (BCT) in reading and mathematics were administered to Abby. She successfully completed the English exam but failed the mathematics one. Neither BCT was administered to Richard apparently based on a belief that it would be futile for him to attempt to pass the exams.

Robert R. Spillane, Deputy Commissioner of Education, by way of a letter to Eleanor Roll as President of the Board informed the Board that the award of diplomas to Abby and Richard violated Part 103 of the Commissioner's Regulations. The letter further indicated that "Any students who have been issued diplomas but not completed all State requirements have invalid diplomas. You are hereby required to provide the Education Department with the names and addresses of any students to whom you have awarded diplomas in violation of State regulations. These students will then be notified by our Department that their diplomas are not valid."

In response to the above direction the Board by way of letter from Joseph F. Beattie, President, to Commissioner Ambach dated July 24, 1979 respectfully "decline(d) to produce the names of the students to whom these diplomas were awarded." Thereafter the State Education Department issued an order requiring the Board to submit the names requested. ¹⁰

Both the state and local school district receive federal monetary assistance.

The petitioners seek relief from said order alleging same to be "arbitrary, capricious, unreasonable and unlawful." They contend that the respondent in issuing the order complained of and in requiring the passing of BCTs by the individual petitioners as a prerequisite for the award of a high school diploma violate Article 1, § 11 and Article 11, § 1 of the New York State Constitution, § 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794), the EHA (20 U.S.C. §§ 1401 et seq.), 42 U.S.C. § 1983 (this cause of action is derivative of the alleged violations of § 504 and the EHA), the Equal Protection and Due Process guarantees afforded by the United States Constitution.

A number of eloquent and engaging arguments have been propounded by the petitioners touching on broad questions facing the educational community, however it must be emphasized that the decision of this Court is meant to speak solely to the factual circumstances presented and the issues revolving around same in respect to the individual petitioners, Abby and Richard. While the issues surrounding the propriety of competency testing in general, and more specifically the testing of handicapped children as a "class" are tangentially addressed by this decision it is not the duty nor the intent of this Court to resolve same.

The legislature of this State is charged with the obligation of providing for the "maintenance and support of a system of free common schools, wherein all the children of the state may be educated." New York State Constitution, Art. 11 § 1; Donohue v. Copiague Union Free School District, 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352. The constitution ¹¹ and the statutes of this State ¹² vest the control and management of its educational affairs in the Board of Regents, that power is concomitantly shared with the Commissioner of Education. Donohue, supra; New York City School Boards Association, Inc. v. Board of Education of the City School District of The City of New York, 39 N.Y.2d 111, 383 N.Y.S.2d 208, 347 N.E.2d 568.

Pursuant to that broad grant of power the Regents and the Commissioner have historically formulated standards for the granting of diplomas. The standards adopted in Part 103 of the Commissioner's Regulations can not be said to be beyond the scope of the power vested in the Regents and the Commissioner.

While the Court agrees with the respondents that the powers set forth above are extremely broad and that the courts have "unalteringly eschewed" making judgment in respect to broad education policy (Donohue, supra at 445, 418 N.Y.S.2d 375, 391 N.E.2d 1352) it is not contended nor would such a contention be palatable that alleged violations of Constitutional or statutory provisions can be hidden behind the cloak of a claim of "educational policy" and as such be beyond judicial review. James v. Board of Education, 42 N.Y.2d 357, 397 N.Y.S.2d 934, 366 N.E.2d 1291.

The state has a legitimate interest in attempting to insure the value of its diplomas and to improve upon the quality of education provided. Use of competency testing to effectuate the goals underlying those interests is within the discretion of the Board of Regents and the Commissioner. ¹³ The petitioners contend however that the application of BCT requirements in respect to Abby and Richard violates § 504 of the Rehabilitation Act of 1973 (§ 504) in that it denies them a benefit or alternatively that it discriminates against them. The statute provides:

"No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely, by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity conducted by any Executive agency or by the United States Postal Service ..." (29 U.S.C. § 794 (emphasis added)

The petitioners have failed to convince this Court that the denial of diplomas to Abby and Richard on the basis of their failure to meet the testing requirement of Part 103 would violate § 504.

Webster's Third New International...