Board of Educ. of Northport-East Northport Union Free School Dist. v. Ambach, RTHPORT-EAST

• Decision Date: 09 December 1982
• Docket Number: NORTHPORT-EAST,RTHPORT-EAST
• Parties: , 8 Ed. Law Rep. 1078 In the Matter of BOARD OF EDUCATION OFNORTHPORT UNION FREE SCHOOL DISTRICT, Respondents-Appellants, and "Abby" and "Richard", Infants, by John P. Bracken, Their Guardian ad Litem, Intervenors-Respondents-Appellants, v. Gordon M. AMBACH, Individually and as Commissioner of Education of the State of New York, et al., Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 680

458 N.Y.S.2d 680

90 A.D.2d 227, 8 Ed. Law Rep. 1078

In the Matter of BOARD OF EDUCATION OF NORTHPORT-EAST NORTHPORT UNION FREE SCHOOL DISTRICT, Respondents-Appellants and "Abby" and "Richard", Infants, by John P. Bracken, Their Guardian ad Litem, Intervenors-Respondents-Appellants, v. Gordon M. AMBACH, Individually and as Commissioner of Education of the State of New York, et al Appellants-Respondents.

Supreme Court, Appellate Division Third Department.

Dec. 9, 1982.

Ingerman, Smith, Greenberg & Gross, Northport (John H. Gross, Northport, of counsel), for respondents-appellants.

Robert D. Stone, Albany (James H. Whitney, Albany, of counsel), for appellants-respondents.

John P. Bracken, East Setauket, Guardian ad Litem, for intervenors-respondents-appellants.

Before MAHONEY, P.J., and KANE, MAIN, MIKOLL and YESAWICH, JJ.

MAHONEY, Presiding Judge.

In the years between 1969 and 1971, the New York State Department of Education, concerned over the decrease in college board scores and reports that increasing numbers of students were graduating from high school lacking basic skills, particularly in reading and mathematics, formed a unit known as the State Examination Task Force and charged it with the responsibility of reviewing the State examination program at the high school level and recommending how that program might be improved so as to increase the basic skills of graduates who did not qualify or did not choose to take the Regents examinations. The task force recommended expansion of the existing programs to include increased emphasis on the basic skills of reading, writing and mathematics. This recommendation evolved into an evaluation plan introduced in 1973 which set forth long-range plans for instructional support and included, as one of its key components, a proposal that the State add basic competency tests in certain basic skills during the high school years.

After in-depth staff discussions, aided by input of educators in the public school system throughout the State, a decision was made that basic competency would be tested only in reading and mathematics. Advisory committees were formed and planning began both as to the content of the examinations and the methodology to be used in administering them. The ultimate tests were designed to have an average difficulty level that would permit the average student in the ninth grade to answer 80% of the questions correctly. Field tests in 1974 indicated that the test contents were valid in that the resultant scores were object related. In March of 1976, the Board of Regents adopted a proposal which made passing the basic competency tests a requirement for high school graduation beginning with the graduating class of June, 1979. Neither the State policy articulated in the proposal passed by the Board of Regents in March of 1976, nor the regulations incorporating the requirement of competency tests subsequently adopted by the Commissioner of Education in July of 1978 (8 NYCRR 103.2[a][2] ) made any provision for the use of alternative testing techniques for handicapped students or any exception from the diploma requirement for handicapped students who could not be expected to pass the tests. ¹

In the matter before us, "Abby" and "Richard" were students in the Northport-East Northport Union Free School District and both were classified as handicapped. ² The school district, although fully aware of the requirements of the State regulation, awarded diplomas to these two students in June of 1979 on the basis of successful completion of their respective individualized education programs (IEPs). Neither student had successfully completed both of the basic competency tests. ³

By order dated August 8, 1979, respondent Commissioner of Education directed petitioner board of education of the school district to reveal the names of any students to whom high school diplomas had been awarded in violation of part 103 of the commissioner's regulations in order to revoke unauthorized diplomas. Petitioner then commenced this CPLR article 78 proceeding to permanently enjoin respondents from enforcing that directive. On September 18, 1979, Special Term preliminarily enjoined respondents from enforcing the August 8, 1979 order and subsequently determined, sua sponte, that Abby and Richard should be permitted to intervene in the proceeding and appointed a guardian ad litem for that purpose. Following a trial on a number of issues pursuant to CPLR 7804 (subd. [h] ), Special Term directed entry of judgment granting the petition to the extent of permanently enjoining respondents from enforcing the August 8, 1979 order and holding that the requirements of 8 NYCRR 103.2 were in violation of Abby and Richard's rights under the Due Process Clause of the Fourteenth Amendment of the United States Constitution (see 107 Misc.2d 830). Special Term denied those portions of the petition which sought relief based upon violations of Abby and Richard's rights under (1) the equal protection guarantees of both the Federal and State Constitutions (U.S. Const., 14th Amdt.; N.Y. Const., art. I, § 11), (2) section 504 of the Rehabilitation Act of 1973 (U.S.Code, tit. 29, § 794), (3) the Education of the Handicapped Act and the Education for All Handicapped Children Act of 1975 (U.S.Code, tit. 20, § 1401 et seq.), and (4) section 1983 of the Civil Rights Act (U.S.Code, tit. 42). ⁴ Cross appeals involving all parties ensued, in addition to a separate appeal by respondents from that portion of an amended judgment which directed that the $6,000 in attorney's fees awarded to Abby and Richard's guardian ad litem be recovered from respondents.

Before turning to the constitutional and statutory issues, the resolution of which are dispositive, we first reject the contention that respondents do not have the power to determine educational policy in this State and to establish criteria for high school graduation. Indisputably, control and management of educational affairs is vested in the Board of Regents and Commissioner of Education (N.Y. Const., art. V, § 4; art. XI, § 2; Education Law, §§ 207, 305; see Matter of New York City School Bds. Assn. v. Board of Educ. of City School Dist. of City of N.Y., 39 N.Y.2d 111, 116, 383 N.Y.S.2d 208, 347 N.E.2d 568) and determinations of the commissioner, unless patently violative of statutory or constitutional mandate, are beyond the range of judicial oversight (Donohue v. Copiague Union Free School Dist., 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352). The adoption of regulations with respect to graduation requirements, including basic competency examinations, to establish a standard that would make a high school diploma in this State a meaningful credential of the graduate, is clearly within the authority and power of respondents.

Section 504 of the Rehabilitation Act of 1973

We conclude that Special Term correctly held that petitioners ⁵ had failed to demonstrate any violation of section 504 of the Rehabilitation Act of 1973. That section provides:

No otherwise qualified handicapped individual in the United States, as defined in section 706(6) 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 receiving Federal financial assistance (emphasis added) (U.S.Code, tit. 29, § 794).

The United States Supreme Court in Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 in construing section 504 in connection with the right of a postsecondary nursing school to deny admission to a hearing impaired applicant, found this practice to be permissible within the concept of whether the petitioner was "an otherwise qualified handicapped individual" within the meaning of section 504. The Supreme Court held that "[a]n otherwise qualified person 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; emphasis added). The court also noted that "[s]ection 504 by its terms does not compel educational institutions to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate" (id. at 405, 99 S.Ct. at 2366). The statute merely requires even-handed treatment of the handicapped and nonhandicapped, rather than extraordinary action to favor the handicapped. The Supreme Court in Davis (supra ) recognized this statutory purpose by stating:

Here, neither the language, purpose, nor history of § 504 reveals an intent to impose an affirmative-action obligation on all recipients of federal funds. Accordingly, we hold that even if HEW has attempted to create such an obligation itself, it lacks the authority to do so (id. at 411-412, 99 S.Ct. at 2369-2370).

It follows, therefore, that in Davis, as here, discrimination against a handicapped person in violation of section 504 of the Rehabilitation Act of 1973 arises only when benefits are denied to an individual who is able to meet all of a program's requirements in spite of his handicap. In the matter before us, Abby is neurologically impaired and Richard is mentally retarded. Abby's IEP included a work study program in horticulture and silk screening and an academic program at the second grade level in mathematics and the third grade level in reading. Richard, concededly, was not intellectually able to pass either of the basic competency tests. Accordingly, respondents' action, as evidenced by its order of August 8, 1979, did not violate section 504 of the Rehabilitation Act of 1973 since neither Abby nor Richard was an "otherwise qualified handicapped individual". Education of the Handicapped Act and the Education for

All Handicapped Children Act of 1975

Next, we also reject petitioners' contention that the provisions of the Education of the Handicapped Act and the Education for All Handicapped Children Act...