Brookhart v. Illinois State Bd. of Educ.

• Decision Date: 03 January 1983
• Docket Number: Nos. 82-1659,82-1718,s. 82-1659
• Citation: 697 F.2d 179
• Parties: 8 Ed. Law Rep. 608 Deborah BROOKHART, et al., Plaintiffs-Appellants, Cross-Appellees, v. ILLINOIS STATE BOARD OF EDUCATION, et al., Defendants-Appellees, Cross- Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 179

697 F.2d 179

8 Ed. Law Rep. 608

Deborah BROOKHART, et al., Plaintiffs-Appellants, Cross-Appellees, v. ILLINOIS STATE BOARD OF EDUCATION, et al Defendants-Appellees, Cross- Appellants.

Nos. 82-1659, 82-1718.

United States Court of Appeals Seventh Circuit.

Argued Oct. 25, 1982.

Decided Jan. 3, 1983.

Gary E. Kerr, Kerr & Longwell, Springfield, Ill., Marilyn Longwell, Kerr & Longwell, Chicago, Ill., for plaintiffs-appellants, cross-appellees.

Rosalyn B. Kaplan, Asst. Atty. Gen., Chicago, Ill., Julian E. Cannell, Kavanagh, Scully, Sudow, White & Frederick, Peoria, Ill., for defendants-appellees, cross-appellants.

Before CUMMINGS, Chief Judge, WOOD, Circuit Judge, and MAROVITZ, ^* Senior District Judge.

CUMMINGS, Chief Judge.

Plaintiffs are fourteen handicapped ¹ elementary and secondary students who are challenging a Peoria School District (School District) requirement that they pass a "Minimal Competency Test" (M.C.T.) in order to receive a high school diploma. After a hearing, the Illinois State Board of Education (State Board) issued an Administrative Order (A-46 to A-58) in which the State Superintendent of Education decided in favor of eleven of the plaintiffs, stating:

(1) The State Board of Education has jurisdiction of this matter, (2) [The] Peoria Board of Education [has] the right to impose reasonable additional standards for graduation with a regular high school diploma, (3) Neither the Education for All Handicapped Children Act, (20 USC 1401 et seq.), nor Section 504 of the Rehabilitation Act of 1973, (29 USC 794), prohibit local school districts from requiring that exceptional students meet all otherwise reasonable standards for graduation including, on its face, the Minimal Competency Test, (4) Federal law requires that school districts make reasonable modifications to tests such as the Minimal Competency Test in order to minimize the effect of an individual student's handicapping condition, (5) Peoria District # 150 violated the "due process" rights of the petitioners by failing to give them adequate and timely notice that the Minimal Competency Test would be a prerequisite to the receipt of a diploma. Accordingly, the Board of Education of Peoria District # 150 is ordered to issue the petitioners regular high school diplomas in a manner consistent with this opinion and the individual orders attached hereto.

The State Superintendent also found that three of the plaintiffs did not have standing to challenge the M.C.T. An appeal by plaintiffs and the Peoria School District was taken to the district court ² which held that there was no due process violation and reversed the order directing the School District to issue diplomas. ³ We reverse.

In the spring of 1978, the School District decided to require all students eligible for graduation in the spring of 1980 to pass an M.C.T. as a prerequisite to receipt of a diploma. The test is given each semester. It contains three parts--reading, language arts, and mathematics--and a student must score 70% on each part in order to receive a diploma. If a student fails any particular part, he is eligible to retake that part until he passes or becomes 21 years of age. Refresher courses are available during the school term and over the summer, though the summer program was on a tuition basis and scheduling problems made it impossible for a student to attend refresher courses in all three areas. Students who do not pass, but otherwise qualify for graduation, receive a Certificate of Program Completion at graduation time, and may continue to take the M.C.T. until age 21.

After the M.C.T. policy was adopted in 1978, the School District undertook to notify students of the additional requirement through distribution of circulars in the schools, individual mailings to some parents, and repeated announcements in the mass media. The State Board said in its Administrative Order that "the record does not clearly establish how well these efforts succeeded, and in particular does not establish that they were adequate to bring notice of the additional requirement with all of its possible consequences to the attention of the parents of the exceptional children involved in these complaints." A-49. While apparently accepting this finding, the district court said that "there is neither evidence nor contention that any plaintiff here did not know of the graduation requirement of passing the M.C.T. more than a year before his or her scheduled graduation." Brookhart v. Illinois State Board of Educ., 534 F.Supp. 725, 727 (C.D.Ill.1982). We disagree that such notice was adequate as discussed in Part 3 infra.

Plaintiffs claim that the M.C.T. as applied to handicapped students violates federal and state statutes, as well as the due process and equal protection clauses of the Fourteenth Amendment. We note at the outset that in analyzing these claims deference is due the School District's educational and curricular decisions. See Debra P. v. Turlington, 644 F.2d 397 (5th Cir.1981), rehearing denied, 654 F.2d 1079 (1981); Board of Educ. v. Ambach, 107 Misc.2d 830, 436 N.Y.S.2d 564 (Sup.Ct.1981). The School District's desire to ensure the value of its diploma by requiring graduating students to attain minimal skills is admirable, and the courts will interfere with educational policy decisions only when necessary to protect individual statutory or constitutional rights.

Before turning to the merits, we must address the question of standing to challenge the M.C.T. During the 19 78/79 and 19 79/80 school years, eleven of the plaintiffs who anticipated graduation in 1980 took the M.C.T. one or more times. None passed all three parts. Of the remaining three plaintiffs, one was eight years old at the time of the administrative hearing and had taken a portion of the third grade pilot M.C.T. while she was a special education pupil in the second grade; one was eleven years old and one was fifteen years old at the time of the hearing and both had not yet taken any portion of the M.C.T. (State Bd. Br. 8). None of these three plaintiffs had standing to challenge the institution of the M.C.T. as a graduation requirement. Two of the plaintiffs did not take the test; the third took a pilot test, the failure of which could not have affected the awarding of a diploma, since she was only in the second grade. These plaintiffs may renew their claims, if appropriate, at a later date. ⁴

1. Education for All Handicapped Children Act

Plaintiffs claim that the denial of diplomas in this case violates the Education for All Handicapped Children Act (EHA) because it denies the individual handicapped students a "free appropriate public education." 20 U.S.C. Sec. 1412(1). The Supreme Court recently examined this statutory requirement in Board of Educ. v. Rowley, --- U.S. ----, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), a suit brought by a deaf elementary school student seeking a sign language interpreter. The Court noted that the Act expressly defines a "free appropriate public education" to mean

special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title.

20 U.S.C. Sec. 1401(18). The Court recognized that the "intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside." ⁵ --- U.S. at ----, 102 S.Ct. at 3042.

This analysis implies that the EHA does not require "specific results," Board of Educ. v. Ambach, supra 436 N.Y.S.2d at 570, but rather only mandates access to specialized and individualized educational services for handicapped children. Denial of diplomas to handicapped children who have been receiving the special education and related services required by the Act, but are unable to achieve the educational level necessary to pass the M.C.T., is not a denial of a "free appropriate public education." Board of Educ. v. Ambach, supra; see also Battle v. Pennsylvania, 629 F.2d 269 (3d Cir.1980).

Plaintiffs further contend that the imposition of the M.C.T. violates the EHA and corresponding regulation mandating that "no single procedure shall be the sole criterion for determining an appropriate educational program for a child." 20 U.S.C. Sec. 1412(5)(C); see also 34 C.F.R. Sec. 300.532 (1981). Yet plaintiffs admit that graduation requirements in Peoria are threefold: earning seventeen credits, completing State requirements such as a constitution test and a consumer education course, and passing the M.C.T. (Pl.Br. 31). In the face of this admission, passing the M.C.T. is clearly not the sole criterion for graduation. ⁶

2. Rehabilitation Act of 1973

Plaintiffs also argue that application of the M.C.T. requirement constitutes unlawful discrimination under Section 504 of the Rehabilitation Act of 1973 (RHA), providing

No otherwise qualified handicapped individual in the United States ... 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 receiving Federal financial assistance ....

29 U.S.C. Sec. 794. In Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980, the Supreme Court held that an "otherwise qualified" individual entitled to the protection of Section 504 is "one who is able to meet all of a program's requirements in spite of his handicap." Id. at 406, 99 S.Ct. at 2367. The Court held that a State nursing program could deny admission to an applicant with a serious hearing disability because, inter alia, the training program required that students be able to...