James v. Board of Ed. of City of New York

• Citation: 366 N.E.2d 1291,397 N.Y.S.2d 934,42 N.Y.2d 357
• Parties: , 366 N.E.2d 1291 Katherine JAMES et al., Individually and on behalf of their minor children, et al., Respondents, v. BOARD OF EDUCATION OF the CITY OF NEW YORK et al., Appellants.
• Decision Date: 14 July 1977
• Court: New York Court of Appeals

Page 934

397 N.Y.S.2d 934

42 N.Y.2d 357, 366 N.E.2d 1291

Katherine JAMES et al., Individually and on behalf of their minor children, et al., Respondents, v. BOARD OF EDUCATION OF the CITY OF NEW YORK et al., Appellants.

Court of Appeals of New York.

July 14, 1977.

W. Bernard Richland, Corp. Counsel, New York City (Leonard Koerner, L. Kevin Sheridan, Michael S. Cecere and Paul T. Rephen, New York City, of counsel), for appellants.

John E. Le Moult and Steven Delibert, New York City, for respondents.

Laura B. Hoguet, Todd B. Sollis, Robert N. Landes and Barbara Ann Cook, New York City, for McGraw-Hill, Inc., amicus curiae.

JASEN, Judge.

Whether the courts have power to enjoin, even temporarily, the administration of examinations to school pupils based on contentions that the integrity of the examinations had been fatally compromised is the issue presented for our consideration. Special Term, affirmed by the Appellate Division, granted a preliminary injunction against the scheduled administration of comprehensive reading and mathematics examinations to pupils throughout the entire New York City school system. There should be a reversal. The temporary injunction issued by the courts below was an unlawful interference with an educational policy judgment made by the appropriate school authorities in exercise of constitutional and statutory power. Whether or not an examination had been so compromised as to strip it of validity as a device for measuring educational achievement is a matter committed to the professional judgment and discretion of those responsible for the administration of the public schools. It is not a matter for the courts.

The Chancellor of the City School District of the City of New York is required, by law, to "cause a comprehensive reading examination to be administered to all pupils in all schools under the jurisdiction of the community districts annually." (Education Law, § 2590-j, subd. 5, par. (a).) Comprehensive examinations are not intended to measure the proficiency of particular students in a particular area of instruction as do, for example, the examinations administered annually under the direction of the State Board of Regents. Instead, comprehensive examinations are designed to provide an assessment of how programs in basic skills, reading and mathematics, conducted by the administering school district compare in relation to national standards. Comparisons are drawn between current performance and performance registered in past years by students taking similar examinations at comparable points in the school year, as well as between the results obtained by the particular school district and results obtained by comparable districts elsewhere in the country. Test results are calculated on accumulation of individual student scores, yet programmatic assessment takes place at the school and district levels.

In New York City, the chancellor is mandated by statute to use comprehensive examination results to rank each school in order of the percentage of pupils reading at or above grade level. The ranking must be accomplished by October 1 of each school year. (Education Law, § 2590-j, subd. 5, par. (a).) Results are also used by both New York City and New York State educational authorities to satisfy requirements imposed by Federal law in connection with Federal educational assistance programs. (See, e. g., U.S.Code, tit. 20, § 241e, subd. (a), par. (6); 45 C.F.R. 116.31(f).) In New York City, therefore, reading ability is tested at grades 2 through 9; and mathematics is tested at grade 5. Examination scores of individual students are considered, but are not determinative, in resolving such matters as promotional requirements for students, pupil admission to special programs and private schools, the organizati ses, teacher evaluation and assessment, class ranking, allocation of Federal, State and local funds, and in the allocation of teachers to schools.

For many years, the New York City school district utilized nonexclusive, nonsecure comprehensive reading tests developed by private publishers. These examinations are sold to, and used by, school systems throughout the country. Use of this form of testing permits a particular school system to measure performance of its pupils against the results obtained by students in other school districts using the same examination. Also, nonexclusive examinations provide a measure of economy since the cost of preparing the examination, and the profit of the private publisher, can be spread through the school districts purchasing the identical test. Use of nonexclusive tests, however, poses dangers that the examination might be compromised. Hence, the private publisher stores the examinations in secure warehouses, carefully regulates who may purchase, or have access to, the tests, and imposes security measures to be implemented in the course of examination administration.

Following administration of a comprehensive examination by New York City in 1974, there were allegations that cheating occurred in some of the city's schools. An investigation revealed that there were instances of unacceptable examination practices. To avoid recurrence of these difficulties, the board of education decided to purchase and employ exclusive, secure tests for the 1975 and 1976 annual examinations. These tests were not previously administered in any school district in the country and the opportunities for prior disclosure, or cheating, were thereby reduced. New York City was the only school district in the country to administer, even briefly, a secure or exclusive comprehensive test. Despite additional security precautions and the use of the secure form of examination, there were still allegations that cheating had occurred in both 1975 and 1976. The scores on both tests were appreciably higher than those of prior years, but, since the test had not previously been administered, scientifically accurate comparison was not possible.

A committee of teachers, superintendents and testing experts recommended a return to the prior practice of purchasing nonexclusive tests. The disadvantage of the exclusive test, the inability to compare results, was considered to outweigh whatever advantages lay with exclusive, supposedly more secure, examinations. The board of education invited bids for the 1977 city-wide test and CTB/McGraw-Hill, a division of the McGraw-Hill Publishing Company, submitted the lowest bid, $408,000. The test purchased from McGraw-Hill, the Comprehensive Tests of Basis Skills, Form S, had been previously administered in four States and in at least 17 major cities throughout the country, including San Francisco, Los Angeles, San Diego, Washington, D.C., and Newark, New Jersey.

In accordance with usual practice, the examination was scheduled for late March. Beginning in January, 1977, the board began to distribute test instructions and materials. The actual examinations were delivered to schools two weeks in advance of the test date to permit teachers sufficient time to complete test forms. The forms required information that had to be obtained from the record cards of individual students. On March 16, 1977, the Community Superintendent of District 6 in Manhattan notified the chancellor that copies of the actual reading portion of the examination had accidentally been distributed as sample materials to schools within the district. By March 28, 1977, the day before the examination, District 6 reported that at least 30 classes had received advance disclosure of examination materials. Other districts also reported instances of premature release to students. Although the mathematics portion of the examination was not affected, the chancellor postponed the entire examination pending an investigation. The investigation disclosed that no more than 3,000 students had seen the reading portion of the examination. Since the examination was to be administered to approximately 720,000 students in 23,000 classes throughout the city, the chancellor concluded that the examination had not been fatally compromised. It was determined that Form S would be administered in those schools where no allegations of irregularity had been made or where irregularity had not been established. In schools that had been affected, an alternative form of examination would be utilized.

The petitioners, parents and teachers of students in various community school districts and the Superintendent of Community School District 4, contended that the irregularities were more widespread than believed by the chancellor. They unsuccessfully sought to obtain administrative relief from the New York City Board of Education and from the State Commissioner of Education. This proceeding was commenced, pursua to CPLR article 78 to challenge the decision to administer the examination. A temporary restraining order was secured and the court subsequently granted the parties additional time within which to submit further affidavits. On April 11, 1977, the court granted petitioners a temporary injunction against administration of the test. The court acted solely on the strength of the papers submitted without holding a hearing.

Special Term stated that the "unrefuted allegations by petitioners demonstrate that, apparently to avoid the cost of security measures, these examinations were delivered well in advance of the examination date, instead of being delivered to the teachers administering the examinations only at the time of the examinations, as was the prior practice." The court agreed with petitioners that the examination had been fatally compromised. "The full and precise extent of the dissemination of the examinations may not be known, but it has plainly been pervasive. To administer these examinations now would be a futile exercise. To rely upon the results would be unfair to those who have lacked prior familiarity with the examinations." Scheduling difficulties and the added expense of purchasing...